Citation Nr: 1507097 Decision Date: 02/18/15 Archive Date: 02/26/15 DOCKET NO. 13-04 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cervical spine disability. ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran had active service from March 1990 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2013, the Board granted service connection for a low back disability. At that time, the Board also remanded the cervical spine disability claim to the RO for further development. In January 2014, the Veteran submitted several folders to the RO containing various documents. One of the documents was a Statement in Support of Claim, dated in December 2013, in which he stated he wanted to introduce new claims for service connection, and indicated he was submitting claims of entitlement to service connection for (1) an acquired psychiatric disorder; (2) bilateral upper extremity disorder (numbness and tingling) caused by his cervical spine disorder; (3) bilateral lower extremity disorder (pain, numbness, and tingling) caused by his service-connected lumbar spine disability; (4) bowel disorder caused by his lumbar spine disability; (5) urinary dysfunction due to his lumbar spine disability; (6) erectile dysfunction due to his lumbar spine disability; (7) residuals of traumatic brain injury related to cranial trauma (head/brain injury); and (8) residual surgical scar of a hernia. In the January 2014 statement, the Veteran also claimed entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), which was further addressed in a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, attached to the Statement in Support of Claim. The above discussed issues of entitlement claimed by the Veteran in January 2014 have not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran has a cervical spine disability related to injury during active service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran has reported that he has a cervical spine disability that began during service as the result of injuries in service including during an assault when three men attacked him and another serviceman while they were walking across a foot bridge. He has reported that symptoms have continued since service although he first sought treatment in 1999. In that regard, he reported that on leaving the Navy in April 1993 he moved to live with his sister and her family, and that he had no insurance until 1999 and had not been really aware that he had VA (health treatment) benefits available. Therefore, he never received treatment for his cervical spine condition until 1999 for the recurring neck and back problems he had since service. Service treatment records show that the Veteran was seen in July 1990 after receiving a blow to the left mandible/jaw. At that time, x-rays showed no fracture and the assessment was contusion of left mandible. Service treatment records include a report of emergency care and treatment in early April 1991, which showed that the Veteran was seen for injuries associated with an attack by someone using a beer bottle and feet with punches all over the Veteran's body. When seen five days later that month, the Veteran reported he was jumped while on a bridge, and hit on the right and left side of his head. He reported present complaints of headaches and trouble sleeping, and right ear pain. The assessment at that time included "headaches probably concussion [or contusion]/post traumatic..." When seen six days later that month, the Veteran reported complaints of insomnia for eleven days (since the time of the assault), headaches and ear ache. The assessment at that time was transient insomnia. A March 1992 service treatment record shows complaints of neck pain for four days. The assessment at that time was mild torticollis. In August 1992 the Veteran was seen for complaints of light headedness and dizziness. The assessment at that time was dehydration. In October 1992, the Veteran was seen for complaints of having difficulty awakening in the morning, even after eleven hours of sleep. The March 1993 reports of medical history and of medical examination at discharge show no complaints or findings referable to a cervical spine disability. Private treatment records dated since 2000 show that the Veteran was seen in November 2000 for complaints of neck pain, pain in both wrists, and of the shoulders and low back, off and on for several years. Symptoms were suggestive of arthritis/tendonitis at an early age. The assessment included neck and back pain. Private treatment records also show that the Veteran was seen in October 2001 for complaints of acute neck pain, with a history of intermittent neck problems for several years. Private treatment records include the report of an October 2001 MRI examination of the cervical spine, which contains an impression of disc protrusion/extrusion toward the right side at C5-6, resulting in narrowing of the right lateral recess and neural canal; some disc material does extend cephalad to the disc interspace; additionally there is right-sided disc protrusion at C6-7. Later that month the Veteran underwent surgery for C5-6 and C6-7 herniated disc. The report of x-rays taken in November 2001 contains an impression of status post fusion at C5, C6 and C7; no prevertebral soft tissue swelling identified currently. In a May 2010 VA ambulatory care note, a staff treating physician noted a history that while in service the Veteran lifted test equipment and other objects up several stairs using ladders. The Veteran reported that in service he developed a hernia (that was treated) and back and neck pain; and the pain had progressively worsened since discharge from service. The physician noted that the Veteran had been evaluated and treated by Neurology and pain specialists, and also had EMG examination. The report concluded with an impression of progressive cervical and back pain. Based on the activities reported in service, the physician opined that "his symptoms are more likely than not a result of his current clinical status present today." In an October 2010 addendum to the May 2010 VA ambulatory care note, that physician clarified her earlier opinion, stating that based on the Veteran's activities in the service, the Veteran's cervical and back pain symptoms are more likely than not the result of his duties in service. During a December 2010 VA examination, the examiner reviewed the clinical record since during service and examined the Veteran's cervical spine condition. After examination the examiner diagnosed cervical neck strain status post cervical fusion. The examiner concluded that she could not resolve the issue of a medical opinion as to whether there was a relationship between the cervical spine disorder and service without resort to mere speculation. In this regard she stated that there was no medical literature she was aware of that states that musculoskeletal strain results in herniated disc requiring fusion in the context of no injury or trauma. She stated that the Veteran's occupation after service, along with normal wear and tear more than likely resulted in the Veteran's current condition. In a report titled Independent Medical Expert Nexus Opinion, supplied by the Veteran and dated in November 2013, Craig N. Bash, M.D., provided a discussion of his review of the Veteran's medical records and an in-person history/clinical interview of the Veteran, to determine if the Veteran's cervical spine disorder was related to service. Dr. Bash noted that the Veteran had a serious altercation in service with a subsequent emergency room visit since he was hit on his head with a bottle; and had hospital visits 5 days and then again 10 days later. He had had trouble sleeping since the event. Dr. Bash opined that the Veteran likely injured his neck in this incident, and has had head, neck and lumbar pain ever since then and subsequently had a neck fusion in October 2001. Dr. Bash concluded with an opinion that the current cervical spine problems are due to the documented altercation trauma during service. As rationale, he stated reasons including the following. Service treatment records show the Veteran entered service without any spine illnesses. The Veteran likely acquired a neck injury in the assault/altercation incident as he remembers pain in the area after the incident. Altercation accidents are known to cause multi-trauma with injuries in several body regions simultaneously. Also, Dr. Bash noted the following. Post-service records including surgical records document that the Veteran had a serious cervical spine injury in service. The time lag interval between the service injury and the development of signs and symptoms is consistent with known medical principles and the natural history of this disease. The Veteran had medical visits for spine problems after service, including abnormal EMG findings in 2010; and surgery in 2001. Lay statements validly document observable symptomatology that show chronicity and continuity of symptoms. Dr. Bash opined that the Veteran would not have required surgery at such a young age had he not had the neck injury in service; the degenerative changes were out of proportion to his age and likely induced by the injury in service. There was no other likely cause shown in the records on file. The report of a December 2013 VA examination shows that the examiner discussed his review of the claims file records, and examination of the Veteran including his reported medical history. The Veteran reported he had neck and back pain since service; that after the assault incident he had insomnia a few days later, and thought that this was a whiplash injury. The Veteran reported he started having health insurance in 1999. After examination the examiner concluded with an assessment that the Veteran presents with complaints of neck pain status post cervical fusion C5-C7. The examiner opined that the Veteran's cervical degenerative disc disease, bulging disc, cervical stenosis, and cervical radiculopathy, are less likely than not caused by as a result of or worsened by military service. As rationale, the examiner stated the following. First, that the Veteran had one acute incident of torticollis in service; and that there was no complaint, evaluation, diagnosis, or treatment for a chronic musculoskeletal condition. The service treatment records associated with the assault in service stated that neck examination was normal. The Veteran's exit examination had no complaints or findings. The examiner stated that there was no documentation (medical records) dated from 1992 until 1999 of complaints of neck pain; and that the Veteran was in jail for two years from 1997 to 1999, and that the first documentation of cervical pain was after he got out of jail; noting though that there were no records on file associated with his jail time. The examiner discussed and discounted the probative value of the 2010 VA treating physician's opinion and the November 2013 private medical opinion. On review of the evidence overall, the evidence for the claim is at least in equipoise on all the elements of service connection. The Board finds that, during service the Veteran was injured twice by blows to the head with subsequent symptoms in service that are referable to neck/cervical spine injury. Such head injuries logically can involve neck injury such as whiplash. The Veteran was seen in July 1990 after receiving a blow to the left mandible, assessed at the time as contusion of the left mandible. He was seen again in April 1991 in the emergency room after a severe attack involving blows to the head. Symptoms present in service after that injury included insomnia and headaches (April 1991), neck pain assessed as torticollis (March 1992), light headedness and dizziness (August 1992). Such symptoms could be associated with whiplash and cervical spine injury. Although no cervical spine disorder was clinically noted during active service, service connection may still be established if it is shown that a current cervical spine disability is related to service. The Veteran is not required to show that he was diagnosed in service if he has a cervical spine disability that is otherwise shown to have begun in service. See 38 C.F.R. § 3.303(d). The Veteran is competent to describe the extent of cervical spine symptoms he has perceived continuously since during service. He has credibly reported that during the first few years after service he did have cervical spine symptoms, but he did not have access to health care until 1999; therefore he could not feasibly provide documentation of complaints or findings referable to his cervical spine condition. He and other lay witnesses have reported credibly as to the continuity of his cervical spine condition since service, even though the findings at the March 1993 separation examination are silent on this point. The Veteran reported during the course of receiving treatment several years after service in 2000, that he had had symptoms for several years. Notably the Veteran's cervical spine disorder is shown to have worsened over time leading up to the October 2001 surgery, consistent with Dr. Bash's opinion and rationale regarding the natural history (expected course) of the disease. As the Veteran's and other lay statements are evidence that competently identifies cervical spine symptomatology that was later diagnosed by the VA examiners, it is likewise, competent, probative, and sufficient evidence to establish the onset of cervical spine disorder, if not etiology. The VA examiner at the December 2010 VA examination based her statement that she could not resolve the issue of a medical nexus between the cervical spine disorder and service without resort to mere speculation. The premise for this was that there was no injury or trauma. However, that premise is not valid as there is service treatment record evidence of head trauma logically linked to a potential neck injury, with subsequent symptoms in service referable to a cervical spine injury. The VA examiner at the December 2013 VA examination opined that the Veteran's cervical spine disorder is less likely than not related to service. That opinion was based on the premise essentially that other than one acute incident of torticollis in service, there was no complaint, evaluation, diagnosis, or treatment for a chronic musculoskeletal condition. Nonetheless, such premise does not account for the symptoms shown after the 1991 assault including many blows to the head, and including subsequent symptoms referable to cervical spine injury including such symptoms of whiplash injury as discussed above. The Board finds more probative the opinions of the Veteran's treating VA physician in May/October 2010, and the private physician opinion in November 2013. Both opined that the Veteran's cervical spine symptoms are more likely than not the result of injuries in service. Both rely on a rationale consistent with the medical and lay evidence of record. In sum, the evidence of record is at least in relative equipoise as to whether the Veteran's cervical spine disability is related to service. Resolving reasonable doubt in his favor, service connection for a cervical spine disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for a cervical spine disability is granted. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs